Radical Christian legal theory, Part 2: Justice for the poor

Thinking about law through a Christian lens means focusing on the poor. “[The Lord] has sent me to preach good news to the poor,” Jesus declares in Luke’s Gospel:

to proclaim release to the prisoners and recovery of sight to the blind, to liberate the oppressed, and to proclaim the year of the Lord’s favor.

(Luke 4:18-19) These words not only launched Jesus’s ministry. They defined his mission. The poor, the oppressed, the stranger, and the outcast – the “least of these” (Matt. 25:40) – were closest to Jesus’s heart precisely because they were at the margins of society.

Centuries before Jesus, this is what the Prophets taught: that the measure of society is at its margins. Justice in the Kingdom of God isn’t about pious rituals, propping up the powerful, or even punishment of wrongdoers. Rather, Kingdom justice is about the poor. “Seek justice!” Isaiah enjoins. “Help the oppressed, defend the orphan, plead for the widow” (Is. 1:17).

If “good news” for the poor is the both message of the Gospel and the measure of a just society, then it must be central to any Christian conception of law.

Sacrificial Justice

In his seminal essay “Christian Legal Theory,” late Harvard scholar (and evangelical Christian) William Stuntz sketches out the theoretical and theological underpinnings of a Gospel-centered theory of law. As I argued in Part 1 of this series (“Law, Gospel, and foolishness“), Stuntz’s essay holds two key insights for Christian legal theory.

First, a Christian conception of law must be “faithful to the subversive implications of the Gospel.”

Second, instead of searching the Gospel for a systematic theory of law, we ought to look for what Stuntz calls “Christian lines of critique, the sin-induced tendencies that run through all legal fields and all legal forms.”

If “good news” for the poor is the both message of the Gospel and the measure of a just society, then it must be central to any Christian conception of law.

When Stuntz talks about “distributive justice,” his focus is not on wealth redistribution policies, but on the dispensation of justice within the legal system, and particularly on the role of lawyers in securing justice for the poor.

And Stuntz’s assessment is a grim one. “Poor litigants do not reliably get fair outcomes, much less empathetic lawyers,” he writes. Public defender offices are understaffed and underfunded, leaving indigent criminal defendants with “overworked bureaucrats” rather than able advocates. And civil litigation is plagued by gamesmanship – tactics designed not to arrive at fair solutions but to exact unfair settlements. As Stuntz notes, these tactics “are especially problematic when used by rich litigants against poor ones.”

In our system, justice depends on what you can afford. A client might get a fair outcome if she can pay for a good lawyer. And good lawyers aren’t cheap. As every litigant quickly learns, in the American system of justice, your status depends on your means.

The Gospel flips this story on its head. Christianity teaches that each of us is a lawbreaker, each of us a guilty defendant who deserves punishment. And yet we are saved, not by our own merit or means, but simply by the mercy of God in Christ, the free gift of grace. Christ, our counselor and divine advocate, bought us with a price, not the other way around. In the Kingdom’s upside-down system of justice, it’s the Lawyer who buys – redeems – the client.

This, Stuntz says, is the real lesson the Gospel teaches when it comes to the legal system and the poor. In his view, a more fair legal system would focus less on “right legal doctrines” and more on “the right lawyers.” Stuntz calls for “a more Christian legal profession” – more lawyers willing to “defend the defenseless and befriend the friendless,” to sacrificially enter into the client’s distress, and to pursue justice with compassion and empathy.

By training his gaze on lawyers, Stuntz’s comments are intensely practical. Yet Stuntz pinpoints sacrifice as essential to doing justice for the poor, and that insight is radical. This notion of “sacrificial justice” is nowhere to be found in contemporary legal ethics. It’s rooted in the cross of Christ, not the classroom.

In the Kingdom’s upside-down system of justice,
it’s the Lawyer who buys – redeems – the client.

Focusing on the Poor

Stuntz’s conception of distributive justice is faithful to the essential elements of his legal theory, particularly his emphasis on relationships over rules and the subversive implications of the Gospel (on which, see Part 1). But there are other Christian lines of critique that Stuntz leaves unexplored.

The Gospel should sensitize us to the ways that society’s rules and systems work to oppress the poor – by reinforcing existing power structures and maintaining social stratification. Often this process isn’t deliberate; indeed, it may be rooted in good intentions. But sin taints everything, and Christians, of all people, should take notice.

There are so many areas that deserve our attention. Let me highlight just one: criminal history information.

With the increasing reliance on criminal law to punish even minor transgressions and technology that makes it easy and cheap to check a person’s background, a growing number of people – one in four American adults – find themselves with criminal records that are wide open to public inspection. Schools, employers, and landlords now routinely reject applicants who have even a hint of a criminal past – no matter how long ago it was, no matter the circumstances of the crime, no matter how much the person has changed. As a result, people with criminal histories face discrimination and barriers in education, employment, housing, and financial aid, institutions that are critical to socioeconomic mobility and reintegration into civic life.

Not surprisingly, this problem disproportionately affects the poor and people of color, reinforcing a cycle of poverty and recidivism. Simply put, if a person has no legitimate options because of her criminal past, she’s more likely to resort to crime (again) as a way to provide for herself and her family.

As advocates for the poor, Christians should be critical of this system. Just as God has wiped the slate clean for us and remembers our “lawless deeds no more” (Heb. 10:17), so we should work to ensure that a person’s past mistakes don’t haunt him forever. Here are three ideas:

Christian schools, employers, and landlords can give people with criminal histories a second look and a chance to talk frankly about their past.

Support legislative efforts that allow more people to expunge or seal their criminal records, which prevents the information from appearing on a background check.

Advocate legal reforms that protect employers from liability for hiring people with criminal backgrounds, at least where the crime has no real bearing on the job.

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Any legal theory, to call itself Christian, must have justice for the poor at its heart. Whether it’s practicing law sacrificially or pursuing legal reforms that give people a second chance, the Gospel reminds us that our social and spiritual destinies are intimately tied to how we treat the “least” among us.

Ian Speir
I'm a First Amendment attorney and counsel to churches and ministries. I'm also Chancellor of the Anglican Diocese of the Rocky Mountains and a contributor to Providence Magazine. I have a heart for the church and its engagement with culture, though I admit to being stuck somewhere between "Benedict" and "Wilberforce." I'm the husband of Breanna, a dad of three, an avid hiker, and a stubborn advocate of the Oxford comma.